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Fruitless pursuit of justice

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Sealing the Case SIMILAR EMPTINESS SURROUNDS DEATH OF SON

Frank and Audrey Lockwood suspected something was amiss when they saw the coroner's report of their daughter's death after a routine medical procedure in 2004. It launched a fight for justice as they see it, a fight that has taken three years and probably isn't over.

Clark County district courts would dismiss the Lockwoods' lawsuit against the medical company they blame for their daughter's death, yet allow that company to sue the Lockwoods -- all in secrecy.

The official determination stated Tina Lockwood McCarley died from an accidental overdose of prescription medication. She had stopped breathing during a CT scan at the Nevada Imaging radiology offices in Las Vegas.

The report stated the 43-year-old woman, disabled and in chronic pain after a car accident 15 months earlier, was claustrophobic and might have taken too much medication to settle her nerves before being placed inside the snug chamber used for CT scanning, a procedure using multiple X-rays to produce cross-sectional views.

Overdose? Claustrophobic?

Upset and frustrated, the Las Vegas couple demanded the case be reopened.

They insisted their daughter wasn't claustrophobic, that she didn't overdose, and they pointed out that tests showed nonlethal levels of prescription drugs in her body hours after the procedure.

"They didn't know what they were talking about, and then they asked us 'What do you think happened?'" Frank Lockwood said.

Challenging the coroner was just the first of many obstacles the Lockwood family encountered during a dogged, three-year pursuit to find out how and why their daughter died, find who was negligent and make them pay.

They appealed to lawyers, the courts, state and county officials, but, instead, the Lockwoods say, they were jolted by a justice system in which the rules favor physicians over patients in malpractice cases, special-interest legislation bridles judges, free speech is surrendered to a clerical error and a suspicious death might never be explained.

"All we wanted was something for Tina's children and the grandchildren that she never got to meet. That's all we wanted. We want them to give us what they took from us so that we can give it to the girls," Frank Lockwood said.

The Lockwoods contacted dozens of radiologists and imaging companies across the country, informing them of their daughter's death and asking about proper procedures. They filed fruitless licensing complaints against the company's doctors and its lawyers. They brought a wrongful-death lawsuit, but it was quickly thrown out on procedural grounds.

Also, Nevada Imaging sued the Lockwoods for defamation, claiming they tarnished the firm's reputation with their crusade of inquiries, Internet postings and correspondence regarding their daughter's death.

Then a courthouse clerk sealed the libel case from public view, an act which court officials now claim was an honest misinterpretation of a judge's order. As a result, for more than two years, the Lockwoods' attorney instructed them and other family members to remain silent about their daughter's death or face contempt-of-court charges for violating the gag order implied by a "supersealed" case. Even the dates and places of hearings are kept off the public record in a supersealed case; in effect, the case is tried in secret.

Only after the Review-Journal began asking questions did a judge clarify that she never meant to conceal the case's very existence. However, she did seal every document in the case, without the Lockwoods' consent. And they remain sealed.

The couple's pursuit of the truth stumbled on all those roadblocks, and, they say, until questions are answered, their daughter can't rest.

A RARE CASE

The coroner listed McCarley's death as an accidental drug overdose based on remarks from a physician but changed the official cause of death after her family challenged the doctor's conclusions, Coroner Mike Murphy said.

"We had information in medical records and the information we were provided ... and it had every indication of an accidental overdose," Murphy said. "As we did a second review of this case, we determined there were unanswered questions that will remain unanswered, and, therefore, it was appropriate to list it as undetermined."

The case is unique, Murphy said. It's rare for the cause and manner of death in a case to be listed "undetermined." Of the coroner's 12,818 cases in 2004, McCarley's was one of 33 in which cause of death is undetermined, according to coroner records.

And it's rare for a medical examiner to revise a death certificate even once, but McCarley's was revised twice.

At first, the cause was listed "natural" as determined by a physician at the hospice where McCarley died after the CT scan.

"There was so much brain damage that if she came out of the coma, she wouldn't know who we were or who she was or who her children were, and she wouldn't have had any control of her bodily functions and would have had no quality of life," Audrey Lockwood said. "My biggest regret was taking her off life support. I thought that maybe I am not a good mother, and I will live with that until the day I die. I have had that guilt since that day, and it is never going to leave. A good mother would have taken care of their child no matter how old she was."

The coroner didn't question that doctor's determination, and no autopsy was planned until one of McCarley's physicians, Dr. Michael DiGregorio, contacted the coroner, Murphy said.

McCarley had been introduced to DiGregorio by an attorney McCarley had hired months before in connection with her car accident, Frank Lockwood said. The doctor referred McCarley to Nevada Imaging after she had fallen at home and possibly reinjured bones broken in the auto accident, the Lockwoods said.

The Lockwoods' malpractice lawsuit against Nevada Imaging would name DiGregorio a co-defendant. It claimed Nevada Imaging phoned DiGregorio moments after McCarley stopped breathing, and that the doctor at that time started a "rumor" that McCarley had overdosed. The "rumor" was then passed on to paramedics who transported McCarley to the hospital, the lawsuit states.

The coroner's report of its investigation, launched because DiGregorio directly contacted the coroner's office, says DiGregorio surmised McCarley accidentally overdosed based upon a CT scan he claimed to have seen, showing 16 pills in McCarley's stomach during the CT procedure. McCarley had prescriptions for drugs to deal with chronic pain resulting from the car accident. DiGregorio suggested to the coroner's office that she took too many of them to deal with claustrophobia during the CT.

The doctor, Nevada Imaging's owners and its attorneys couldn't be reached for comment.

The Lockwoods challenged nearly every claim in the coroner's report. For instance, blood, urine and other tests done on McCarley after she was rushed from Nevada Imaging to Summerlin Hospital and Medical Center showed therapeutic, nonlethal doses of prescription drugs, not an overdose. Also, an ultrasound exam of McCarley's abdomen didn't show the pills that DiGregorio and Dr. Alice Poon-Chue, a radiologist at Nevada Imaging, said were present during the CT scan earlier that day.

And DiGregorio's representation that McCarley was claustrophobic remains unconfirmed; the Lockwoods note that McCarley had undergone CT scans before, without any particular difficulty.

Murphy defended Medical Examiner Gary Telgenhoff's initial decision to list the cause of death as an accidental overdose.

Nearly two weeks had passed between the day she stopped breathing and the autopsy, he said. As a result, any physiological evidence would have been metabolized during that time, Murphy said. With no precise cause of death, the coroner's office relied on McCarley's physician for information as medical examiners do "on a regular basis," Murphy said.

"They (Lockwoods) painted a picture that contradicted the picture we had been given," he said. "When you look at the totality of the situation, it raises enough questions that you have to go with 'undetermined.' It could have been a seizure. It could have been an overdose."

MALPRACTICE CASE DISMISSED

The Lockwoods filed a wrongful-death lawsuit against Nevada Imaging and the company sued the Lockwoods for defamation, but neither case went to trial. A judge or jury never heard from witnesses or sorted through medical records, and the truth surrounding McCarley's death remains a mystery.

The Lockwoods' lawsuit said McCarley might have had a severe allergic reaction to a dye injected into her as part of the medical procedure. She stopped breathing as a result, and the medical staff didn't resuscitate her before she became unresponsive and later died, the lawsuit states.

The Lockwoods represented themselves after more than a dozen local attorneys, with experience in malpractice cases, declined to take the case. Many said that they had a conflict of interest in cases involving Nevada Imaging, Frank Lockwood said. Most of those attorneys said they send injured clients to Nevada Imaging, and one Salt Lake City attorney refused the case after realizing he had used a Nevada Imaging radiologist as an expert witness in a previous case.

Nevada Imaging's four Las Vegas Valley medical centers are part of a San Francisco Bay Area-based network of radiology outfits known as the National Orthopedic Imaging Centers, according to the organization's Web site.

According to city of Las Vegas business records, Nevada Imaging's managing members were John W. Wellhausen and Garey McLellan when the facility first received a business license in March 2002. In May, the business changed hands. The new managers are Shane Macaulay, Dean Yarbro and Keith Lewis, according to city records.

Nancy Saitta, who is now a justice on the Nevada Supreme Court but was then a Clark County District Court judge, dismissed the malpractice lawsuit on procedural grounds eight months after it was filed in January 2006.

Saitta ruled that the case didn't comply with state laws aimed at limiting frivolous medical-malpratice lawsuits. One law requires a plaintiff to file a medical-malpractice lawsuit within one year after negligence is suspected. The Lockwoods filed a complaint against Poon-Chue with the state Medical Examiners Board in November 2004, and Saitta dismissed the lawsuit because it hadn't been filed within one year of that complaint.

The Lockwoods told the judge their complaint was merely to ascertain Poon-Chue's licensing status and didn't mean they were certain malpractice had occurred. But Nevada Imaging's attorney, Mara Fortin, successfully argued that the complaint to the licensing board cited the conduct the Lockwoods would eventually call negligence.

Addressing the Lockwoods in a 2006 hearing on the malpractice suit, Fortin said, "You had fully developed your theories. You had sent around packets all over the country telling people that (Nevada Imaging) murdered, you know, your daughter. There's just nothing. There's just nothing here. ... You've got the doctor. You've got the technician who performed the procedure. You've got the office manager who they (Lockwoods) are all accusing of medical negligence in failing to give CPR first aid. So, it's all medical related. It's all medical negligence. The one-year statute applies to these individuals."

Although the cause of death was undetermined, Fortin said, "If he had a meritorious case, the death of a young woman who was murdered by a facility, you would have an attorney here. She simply had an overdose of pills, and we think it's appropriate to dismiss the defendants at this time."

DiGregorio's attorney, James Rosenberger, said the doctor also should be dismissed. In violation of the state's medical malpractice laws, he said, the lawsuit wasn't filed with an affidavit signed by a medical expert who concurred with the allegations in the lawsuit, according to minutes of the hearing.

According to the transcript, Saitta wrapped up the 18-minute hearing, with, "I don't doubt that the loss of your daughter was a horribly tragic situation, and I don't doubt that you have concerns about the way this matter was handled. I think the law provides guidance with respect to the time for filing, the requirements for filing, and it is important for us to be sure that those requirements are met and enforced fairly. And, it is, as I said, gives me no great pleasure, but I believe the motions (to dismiss) shall be granted."

The confidential complaints the Lockwoods filed against Poon-Chue and Fortin with state licensing officials were dismissed.

"Because we went through it in such detail at Mr. Lockwood's insistence, all aspects of the case were taken apart and reviewed," Doug Cooper, chief of investigations for the Medical Board, said. "I wish there is more we could do for Mr. Lockwood, but there isn't."

Fortin's only other case before Saitta was filed in 1997 according to court records. However, the attorney contributed $5,000 to Saitta's state Supreme Court campaign three months after the judge dismissed the Lockwood case, according to Saitta's campaign disclosure reports. Fortin could not be reached for comment.

GAG ORDERS AND FREE SPEECH

More than two years passed before Judge Valorie Vega in August dismissed Nevada Imaging's defamation lawsuit after a closed-door hearing with lawyers and the Lockwoods. However, it was reopened Nov. 16 on the Lockwoods' motion to unseal the case documents.

And, for the first time since May 2005, the Lockwoods were free to talk publicly about their daughter's death because no longer were they under a gag order that silenced them while the case was pending.

The same day Nevada Imaging filed the lawsuit, District Judge Betsy Gonzalez approved its request to seal from public view all documents in the case. But as a result, which Gonzalez now claims she did not intend, both sides were also led to believe a gag order was in place.

The case is just one of at least 115 cases sealed by Clark County District Court judges between 2000 and late 2006 and just one of many involving physicians or medical companies.

"If the case hadn't been sealed, all of this would have gotten out to the public and they (Nevada Imaging) would have had to change their procedures. As far as we know, they haven't changed their procedures." Frank Lockwood said. "We were looking forward to our day in court. We had been harassed for 21/2 years, and all that would have gotten out to the public."

The seal on the case began to crack, however, when the Review-Journal attended an April court hearing that wasn't listed on the court calendar because the case was sealed.

At that hearing, Vega dismissed a slander allegation against Frank Lockwood. The charge was based on an off-the-cuff remark made when he and his wife visited Nevada Imaging's office to collect medical records weeks after their daughter died. Frank Lockwood gestured to the recovery room and said, "That's where they murdered our daughter," according to comments made at the hearing. As far as the Review-Journal can learn, nobody else was present to hear it except the company's own employees.

Kevin Diamond, an attorney hired by the Lockwoods' insurance company as part of their coverage, told Vega the comment was on its face an opinion, not represented to be proven fact, and thus not slanderous.

"The Lockwoods can't be punished for giving their First Amendment opinion about what happened to their daughter," he said at the time.

However, Vega didn't dismiss the accompanying libel allegation until four months later. The company claimed the Lockwoods hurt its reputation when they wrote to other imaging companies about their daughter's death and posted negative comments on a memorial Web site.

"They didn't take it to trial because they couldn't prove anything at trial," Frank Lockwood said. "I don't think it had anything to do with the money. I don't think they wanted the public to know what happened that morning and the lengths that they went to keep it quiet."

The Lockwoods last month obtained, for the first time, a copy of Gonzalez's sealing order. They contacted her to find out why she sealed the lawsuit without first giving them an opportunity to oppose the request.

Gonzalez's staff looked into the situation and realized for the first time that a court clerk misinterpreted the judge two years earlier. The judge had indeed instructed that every document be sealed, which means she had intended from the beginning to keep details of the case hidden from the public. However, the clerk went even further and "supersealed" the case, which kept its very existence off public records, and led participants to believe they were under a gag order and prohibited by law from even discussing the case with anyone who wasn't involved.

Gonzalez explained that she ordered all the documents sealed because the case involved allegations of defamation, and she wanted to avoid further spreading statements already alleged to be defamatory and untrue.

"There are cases that exist -- and they are rare -- when people are trying to protect their rights and to disclose that information would further hurt their rights," she told the Review-Journal.

However, she never intended to prohibit litigants from discussing the case, and never thought that hearings would be held in secret for the ensuing two years, she said.

In response to the Review-Journal series in February on sealed cases, which revealed that some judges claimed unbridled discretion to seal civil cases, the state Supreme Court appointed a commission to develop court rules aimed at keeping court records open to the public.

The Commission on the Preservation, Access and Sealing of Court Records has met since May, and last month sent to the state Supreme Court its proposed regulations. They lay out limited circumstances and procedures under which a judge might seal or redact case records, and require that certain portions of a case would have to remain public even then, including the names of the parties involved, the name of the presiding judge, the judge's order to seal or redact the case, and the judge's written findings justifying the order. The state Supreme Court is expected to review the recommendations in December.

Meanwhile, the Lockwoods have once again contacted the coroner in hopes of getting McCarley's cause of death revised for a third time. They didn't have any luck.

And, the couple recently contacted attorneys at the nonprofit Senior Law Project, which provides free legal advice to seniors, who told them that the defamation case was a malicious lawsuit and suggested the Lockwoods pursue a counter lawsuit against Nevada Imaging on those grounds, Frank Lockwood said.

The couple has contacted a few local attorneys, but none has agreed to review their case. At least one, high-profile defense attorney Dominic Gentile, declined to take the case because of a conflict of interest involving Nevada Imaging, according to a letter his law office sent the family.

"We are still looking for justice for Tina because I think her civil rights were violated," Frank Lockwood said. "It was a wrongful death. Just because their people were incompetent was no reason for her to become a victim."

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